FREEDOM OF INFORMATION
Nine FOIA Requests
1) Documents that have been properly classified as confidential or secret in the interest of national security or U.S. foreign policy; 2) Documents relating to "internal personnel rules and practices" of federal agencies; 3)Matters that are specifically excepted from public disclosure by some other statutory law; 4)Trade secrets and certain other financial and commercial information gathered by government agencies; 5) Interagency and intra-agency memoranda that involve the internal decision-making process (e.g., working papers and tentative drafts 6) Personnel and medical files and similar documents that should be kept confidential to protect individual privacy; 7)Investigatory files complied for law enforcement purposes, but only been the disclosure of such files would: (a) interfere with law enforcement; (b) deprive a person of a fair trial; (c) constitute an unwarranted invasion of personal privacy; (d) disclose a confidential source; (e) disclose investigative techniques and thereby permit someone to circumvent the law; or (f) endanger the life or safety of any individual; 8) Documents prepared by or used agencies regulating banks and other financial institutions; 9) Oil and gas exploration data, including maps
Brown Act: What is covered?
A "meeting" is any gathering of a majority of the members of a covered board, to hear, discuss, or deliberate on matters within the agency's or board's jurisdiction
California Public Records Act: What Must Happen?
Access is immediate and allowed during business hours. Staff need not disrupt operations to allow immediate access, but a decision must be prompt on whether to grant access The agency must provide assistance by helping to identify records and information relevant to the request and suggesting ways to overcome any practical basis for denying access Agency has 10 days to decide if copies will be provided The agency may never make records available only in electronic form Access is always free Copy costs must be limited to fees set by statute The agency must justify the withholding of any record
Brown Act: Who is not covered
Ad hoc advisory committees consisting of less than a quorum of the covered board All other government agencies
What can be requested?
All agency records that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency's possession and control Such as print documents, photographs, videos, maps, email and electronic records Agencies are required by the FOIA to maintain information about how to make a FOIA request, including a handbook, reference guide, indexes, and descriptions of information locator systems Agencies have to respond to a request within 20 days
Who does the FOI Act Apply to?
Applies to Executive Branch departments (State Department, Department of Justice), agencies (FBI, CIA), and offices; federal regulatory agencies (FCC, SEC) Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President are NOT subject to the FOIA
CIA v. Sims (1985)
CIA may keep the identities of its sources of intelligence data secret even when national security is not involved
U.S. Department of Justice v. Reporters Committee for Freedom of the Press (1989)
Court ruled out public access to the FBI's criminal histories on millions of people Court stated that when "the request seeks no official information about a government agency, but merely records what the government happens to be storing, the invasion of privacy is unwarranted." Problem with this decision is that much of what we know about past government wrongdoing comes from records about individuals
U.S. Department of Justice v. Landano (1993)
Court ruled that the exception for law enforcement records does not give the FBI an automatic right to refuse to release information that might identify a source Court must review each request that would identify information about individuals on a case by case basis
Reno v. Condon (2000)
Court upheld the Federal Driver's Privacy Protection Act Court used the Commerce Clause of the Constitution to do this by stating that states sell driver's license information to advertisers and insurers which amounts to commercial activity by the states
California Public Records Act: Who is not covered?
Courts The Legislature Private, non-profit corporations and entities Federal Agencies
Schaffer v. Kissenger (1974)(D.C Circuit)
Documents must have been properly classified for the national security exception to apply
California Public Records Act: What is not covered?
Employee's private papers, unless they relate to the conduct of the public's business and are prepared, owned used, or retained by the agency Computer software developed by a state or local agency Records not yet in existence Numerous other (conditional) exceptions including ~ Attorney-client discussions, appointment calendars and applications, phone records, and other records which impair the deliberative process ~ Preliminary drafts, notes, and memos ~ Home Addresses ~ Records concerning agency litigation ~ Personal, medical and similar files ~ Police incident reports ~ Financial data
Other FOI Limitations
Executive Privilege President and other executive officers have long claimed executive privilege to keep many of their records secret FOIA recognizes executive privilege by exempting matters affecting national security and the internal working documents of federal agencies
Freedom of Information Act
Federal Law that establishes the public's right to obtain information from federal government agencies Established in 1966 and amended multiple times Declares that the vast majority of records kept by administrative agencies of the federal government to be open for public inspection and that copies are to be provided at a reasonable cost
Bibles v. Oregon Natural Desert Assn. (1997)
Government agency's mailing list should not be disclosed under the FOIA Names on a list should only be released when their disclosure "would shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." Right to privacy outweighs public's right to know
Federal Driver's Privacy Protection Act
Law requires every state to close its motor vehicle registration and driving records to the media and the public Exceptions for insurance companies and private investigators
U.S. v. Nixon (1974)
Nixon sought to invoke executive privilege to avoid releasing tapes which incriminated his administration in the cover-up of the Watergate break in Court said Executive Privilege is only absolute in connection with military and diplomatic information that must be kept secret to protect national security In other areas, executive privilege has to be balanced against other interests such as the obligation of every citizen to step forward with evidence of a crime that may be in his possession Supreme Court ordered Nixon to release the Watergate tapes Case drastically curtailed executive privilege
Pell v. Procunier (1974)
No Constitutional right to interview prisoners
Houchins v. KQED (1978)
No constitutional right to access prisons "The media are not a substitute for or an adjunct of government, and like the courts, they are ill-equiped to deal with the problems of prison administration.
The Buckley Amendment
Officially the "Family Education Rights and Privacy Act" (FERPA) Gives parents the right to see their children's school records and forbids release of these school records to outside parties without the parents' consent Allows students over the age of 18 to see their records School systems that fail to obey the Buckley Amendment may be denied federal funds Students cannot use the Buckley Amendment to sue schools that divulge their personal information (Gonzaga v. Doe - 2002) Has increased the secrecy of school disciplinary records
Under Brown Act, Closed Meetings May be Held For:
Personnel - only to discuss the appointment, employment, performance evaluation, discipline, or complaints about or dismissal of a specific employee or potential employee Closed sessions not allowed for discussing general employment, the performance of any elected official or member of the board, the local agency's available funds, funding priorities or budget, independent contractors
Under the Brown Act an Agency must:
Post notice and an agenda for any regular meeting Notify the media of special or emergency meeting if requested Hold meetings in the jurisdiction of the agency Not require a "sign in" for anyone All non-disruptive recording and broadcast of meetings Allow the public to address the covered board at regular or committee meetings Conduct only public votes Treat documents as public if distributed to all or a majority of the members of a board before or at a meeting
Forsham v. Harris (1980)
Private organizations doing research under government grants need not make their data public
California Public Records Act: What is Covered?
Records, including all forms of communication related to public business. Electronic records are included, but software may be exempt
Other General FOIA Information
Requests should be made in writing to the agency and should be as specific as possible If the request is denied, the agency must provide a list of the documents withheld along with a legal justification for withholding each document List is known as a Vaughn Index based on a Federal Case that established this rule - Vaughn v. Rosen After 9/11, Attorney General John Ashcroft announced a new policy that encouraged agencies to keep information secret whenever there was a "sound legal basis" for doing so. The OPEN Government Act of 2007 reversed this presumption, directing government agencies to favor disclosure in gray areas
Government in the Sunshine Act (1976)
Requires about 50 administrative agencies to conduct some of their meetings in public Meetings must be held at announced time and place Closed meetings are allowed for 10 different reasons 9 of the 10 are virtually the same as the FOIA exceptions 10th exception is to discuss pending litigation or other similar adjudicatory matters Must vote to close the meeting in public Accurate and complete records of closed meetings must be kept Results of votes and the way people voted must immediately be published after closed meetings
California Public Records Act: Who is Covered?
State and local agencies
Saxbe v. Washington Post (1974)
The Supreme Court allowed Federal and California prison officials to ban all press interviews with specific individual inmates.
Pending Litigation
only if open discussion would prejudice the agency in the litigation
Property Negotiations
only to discuss, with an agency's identified bargaining agent, price or payment terms
Labor Negotiations
only to instruct the agency's identified negotiator on compensation issues
